Tuesday, July 29, 2014

Swastikas Are Hard to Draw, Man

Saturday, July 26, 2014

An X-Ray of the Crab Nebula

We here on Earth have watched this star explosion in real time since 1054 A.D., but only now can we see inside it and the neutron star at the core of the supernova and the jets and rings around it. I've seen many visible light composits of the Crab Nebula all my life but to see the center in X-Ray is amazing.

Statutory Construction Rules Regarding Legislative History

I've written about the Halbig case here and here. Of course the left is up in arms that the court did its job following the rules, because its proper interpretation probably spells a more rapid doom for the ACA than without this decision. The left goes normal nutty and calls the decision everything bad, including criminal. I ran across this article this morning and it's interesting. The gist:

Did the people who designed Obamacare intend to deprive millions of people of health insurance, just because officials in their states decided not to operate their own insurance marketplaces?

A lawsuit making its way through the federal judiciary, and perhaps on its way to the Supreme Court, claims the answer is yes. And while every federal official and member of Congress who worked on crafting the law in 2009 and 2010 disagrees... (Emphasis added).

But that's not how it works. If in fact the court is at a loss to construe the intent of the legislature through the plain meaning of the statute's words, that is, if the law is truly ambiguous, then the court looks to legislative history, what the authors and legislators said at the time of the law's passage about what they intended. But the court only looks at what they said back then. The judges and justices do not look at what the legislators say now. There's a very good reason for this. Legislators and drafters lie. "I see what the statute says and how you've interpreted it, but we never intended it to mean that." That doesn't cut it. The only thing that matters, if you have to resort to legislative history, is what was said back then, before passage.

Jonathan Gruber, from MIT, is widely held to be the architect of both Romneycare and Obamacare. Check this out if you disbelieve me.

Chris, it is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo... It`s just simply a typo, and it`s really criminal that this has even made it as far as it has... But it`s literally insane to think that
because of a typo in the law, which happened simply because Republicans obstinacy would not let the bill go to conference -- that that typo would bring down the law is just a failure of democracy.

Typical douchbaggery from the left--call the rational people crazy criminals while you lie and lie and lie. We on the right are used to this sort of projection.

But here's what Gruber said before the ACA was passed:

Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.
Gruber: Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this. (Emphasis added).

And he said it again here. I'll update as more and more of these are located as Gruber was apparently on some sort of book tour at the time and may have well repeated this a lot of times.

Back to what Jonathan Cohn at the New Republic tries to sell in his unconvincing attempt to defend Gruber's bald face lying.

Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake."

Yeah it was just a mistake, (every time you said it as part of your prepared speech), that you described exactly what the law actually said.

Here's Gruber totally failing to defend himself:

But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.

A speak-o? Other MIT graduates everywhere are cringing. But it wasn't a subsequent statement, it was a statement contemporary to the law's passage--the kind of statement that is actual legislative history. The lie you're trying to sell now is the subsequent statement, the one the court never should rely on. For a MIT grad, this guy's none too savvy.

Here's legislator Max Baucus, former Democrat Senator from Montana, also saying that the intent of the legislation is exactly what the plain meaning of the statute says it is. And Baucus said this before the ACA was passed. What are the odds the 'architect' of the legislation would say twice that it means exactly what it says and have another supporting legislator say the same thing and their contemporary statements are merely speak-os? Now I'm cringing to use the word.

I'd say 'good try' to the lefties trying to rewrite the legislative history but it wasn't a good try. You have failed completely to convince any rational person that the intent of the law did not match its words. You have failed completely to undo the actual legislative history that counts. You have failed to pretend convincingly that you did not mean what you said twice (at least). And you have been so obnoxious about it, that those who happen to follow this case but who do not share my contempt for many on the left might start to in the very near future.

UPDATE: It just hit me that there won't be much other valid legislative history. Usually the information outside the law itself about the intent of the legislature comes from speeches and debates in committees and on the floor of the House and Senate about the bill and the parts of the bill being examined in committee. I don't think there was any of that for the ACA. More super competence by the Democrats.

Wednesday, July 23, 2014

Persistance of Blindness

Again, lefty journalists (sorry so wordy) pretend that Gaza, from which the Israelis entirely decamped nearly 9 years ago, is occupied. This is a strange new use of the word 'occupy' with which I am unfamiliar. Here is the latest in self-delusion from the far left Guardian, this time by Owen Jones. Second paragraph:

A few days earlier, photographs emerged of young residents relaxing on folding chairs as they watched the bombing. Some smoked water pipes; others had brought popcorn. On one level, the “Sderot cinema” sums up the asymmetry of this so-called conflict: of Gazans huddled in terror as a military superpower pounds their overcrowded, besieged open-air prison camp; while on the other side of the border, Israelis joyously celebrate their country’s military might, whatever fear they have of Hamas rockets eclipsed by the thrill of bombs detonating in the near distance. It is also illustrative of how occupations corrupt the occupier. “What a misfortune it is for one nation to subjugate another,” Friedrich Engels wrote in 1864, referring to Britain’s oppression of Ireland. “All English abominations have their origin in the Irish pale.” And so it goes with Israel and Gaza.

The "open air prison camp" of Gaza once was occupied by Ottoman Turks for centuries then by WWI winners, then by Egypt, from 1948 until 1967, that is, from the first attempt of the Arabs to destroy Israel to the second. And when I use the word 'occupy' I use it in its plain, everyday meaning, which is, actually to have troops of the occupying country in the occupied country. Israel occupied Gaza through the third attempt to destroy Israel in 1973, when Israel captured all of the Sinai while defeating Egypt et al. decisively. There was finally a peace treaty between Egypt and Israel in 1979 and Israel returned the Sinai to Egypt. They offered to return Gaza too, but the Egyptians didn't want it back. The Israelis left Gaza in 2005. That's actual history.

Let's skip to the last paragraph, which contains the cognitive dissonance which is the result of pretending non-occupation is occupation.

For those who want peace – including an end to the occupation and the dismantling of every settlement – it is tempting to demonise Israeli supporters of this latest offensive. But it is futile and self-defeating. The occupation will not end until the rationales that sustain it are understood. As Palestinian children are killed, that may seem like a lot to stomach, but it is no less necessary.

Mr. Jones says that those who want peace in the area want an end to the occupation and the dismantling of every settlement, among other things. But that is exactly what Israel did with Gaza in 2005. They ended the occupation and dismantled and removed every Israeli settlement. Did they get peace? Or did they get thousands of rockets and mortar rounds launched into Israel?

I am willing to bet a mortgage payment Jones doesn't realize how history and this last paragraph thoroughly guts his entire argument, if not his peculiar Weltanshauung.

Friday, July 18, 2014

Eschewing Hubris

I don't think I'm smarter than Lawrence Tribe, far from it, but I can recognize a mistake in judicial or quasi judicial analysis when I see it. And I see one here. Tribe sees the danger to Obamacare that the drafting I pointed out here creates. I say that the 'danger' of the case is that the law of statutory interpretation make the outcome I cautiously predict necessary. He sees it as a minor error that should not be a problem but which could provide the conservative judges with an excuse needlessly to harm the ACA. Tomato, tomato. But here is a definite mistake.

So, when this case ultimately reaches the court, the ACA’s fate would again rest in the hands of Roberts, just as it did in 2012. If Roberts is true to his pragmatic judicial philosophy, he should find the challengers’ reading unconvincing. He has repeatedly held that, where fairly possible, a court should interpret an ambiguous law in a way that avoids finding the law unconstitutional. It was that principle that led him to vote to uphold the individual mandate and should lead him to side with the Obama administration in this latest round of attacks. (Emphasis added).

That bold section is accurate law and it did clearly inspire the Chief Justice in an earlier case to hold the ACA constitutional, as it should have. But there is nothing about unconstitutionality in the case Tribe and I are talking about. The case in front of the DC Circuit involves merely a matter of making the executive branch enforce the law as written. The do what you can to uphold a law's constitutionality rule does not apply. Tribe apparently whishes it would as it would probably dictate the result again. But it's not there.

Each Side is a Mystery to the Other

Here is a New Republic article by Brian Beutler which tries to chart out the future (difficult to do) of federal politics after the 2014 midterm elections and the near Republican tidal wave it threatens to be. I was struck by this paragraph.

There is an existing tension between conservative rank and file Republicans and Republican party leadership—between those who insist on maximizing the GOP's existing power as a Congressional party, and those who prefer to eschew politically unsupportable exercises of power for the sake of the party's national standing. A GOP victory in November would encourage both factions to pull harder in opposing directions.

This guy doesn't know squat about the political ambitions of the Republicans and the main fault line which exists to divide the party. There is, alas, such a fault line, probably more like the borders of tectonic plates, but it's nothing like this guy describes.

This is more accurate, at least I hope it is more accurate, about the effect of a Republican majority in the Senate.

The flip side, of course, is that Republicans would gain agenda setting power. If they were disciplined with this new power, they would splinter the Democratic minority and force Obama to veto popular legislation—something he and Hillary Clinton and everyone else in the Democratic party have every interest in avoiding.

And we could stop cold the deleterious, long term effects of the President and Senate putting nothing but lefty judges into the federal judiciary. That alone is worth a lot of work and sacrifice by the right.

Thursday, July 17, 2014

Dispatches From A Planet Not Our Own

You're entitled to your own opinion, but you're not entitled to your own facts.

Daniel Patrick MoynihanThe trouble with our Liberal friends is not that they're ignorant; it's just that they know so much that isn't so.Ronald ReaganSeumas Milne at the ultra left Guardian has a disturbingly alien look at a small part of Earth, the Gaza, here. I have no idea how to pronounce his first name.

I use the headline and the word 'alien' above because I can't believe Mr. Milne is anything but a late arriver here on our lovely planet. He certainly seems to know very little about the Middle East. Behold.

For the third time in five years, the world’s fourth largest military power has launched a full-scale armed onslaught on one of its most deprived and overcrowded territories.

Is he talking about Gaza, from which Israel left, forcing out all its settlers, nearly nine years ago? Why yes he is. How is a wholly un-occupied Gaza one of Israel's "territories"? I'm gob smacked. He doesn't let up.

But instead of demanding a halt to Israel’s campaign of collective punishment against what is still illegally occupied territory, the western powers have blamed the victims for fighting back.

The Israelis are not occupying Gaza. That's just a well established fact. Does the United States occupy Mexico because we guard the border between us and Mexico. Wait, that's a bad example. Ah, does South Korea occupy North Korea because it guards the border between it and perhaps the worst place on Earth? I mean wouldn't you have to have occupying forces to actually, uh, occupy a foreign country in order to make it occupied? One would think so. Is there an explanation for this groundless belief of Mr. Milne? Well, no but at least he tries.

The idea that Israel is defending itself against unprovoked attacks from outside its borders is an absurdity. Despite Israel’s withdrawal of settlements and bases in 2005, Gaza remains occupied both in reality and international law, its border, coastal waters, resources, airspace and power supply controlled by Israel.

OK, so at least he knows that the Israelis withdrew completely from Gaza nine years ago. Let's parse the rest. Milne says that Gaza today remains occupied both in reality and international law. Well, perhaps international law occupation could be argued but not "in reality" occupation. Milne says the border is controlled by Israel. So every guarded border makes the adjacent country occupied in fact? So every country occupies in fact the country next to it? Come on, that's just stupid. Milne says the Israel controls the coastal waters. I believe that's true if by control you mean tries to guard against delivery by sea to Hamas and Gaza military munitions, mortars and rockets. Milne then goes completely gaga saying that Israel controls Gaza's resources. What resources? What control? Mindblowingly deceitful that. Airspace control? You mean they control the flight paths of the rockets the Arabs in Gaza are launching into Israel?

But there is one thing Milne has exactly right. Israel does control the power supply in Gaza but that's because the Israelis generate the electrical power the Arabs use in Gaza. And we all know that supplying electrical power across the border between countries is a well established form of illegal occupation. That was sarcasm and I have to point it out because someone of Milne's ilk would be twit enough to think I was meaning what I said. OK, so all in all, Israel does not occupy Gaza but defends against its citizens trying to kill Israelis by preventing them from getting rockets etc. and sometimes degrading their ability to keep launching rockets by direct application of IDF munitions.

But here's my favorite part:

But the idea that Israel is responding to a hail of rockets out of a clear blue sky takes “narrative framing” beyond the realm of fantasy. In fact, after the deal that ended Israel’s last assault on Gaza in 2012, rocketing from Gaza fell to its lowest level for 12 years. (Emphasis added).

OK, so the idea, to Mr. Milne, is that it is absurd to think that Israel is responding to a "hail of rockets out of a clear blue sky" just because there is a hail of rockets coming out of Gaza and into Israel out of a clear blue sky. And why is it absurd to think that? Because the hail of rockets coming out of Gaza is at its lowest level in 12 years. I really don't have anything further to say about the Milne idea of comparative rocket launch rates equaling no rockets. Math does not seem his strong point. Having an unpronounceable first name seems his strongest point.

A normal person would think that Gaza residents stopped rocketing their neighbor so much after the 2012 incursion to stop rockets because Israel did a good job of diminishing the Arabs' ability to launch them. But not this genius.

How many American Jews consider themselves on the left? 60-70%? Why? The left hates them, and always has.

UPDATE: Charles Krauthammer agrees with me (which is a good thing) and adds some very helpful history to the mix here.

Saturday, July 12, 2014

Judges Who Care

First some background. The first rule of construing a statute by a court is to give meaning to the intent of the legislators first by looking at the plain language of the statute and giving each word there its ordinary meaning. The second rule is don't rewrite the statute by ignoring inconvenient parts (that's kinda the second rule). I have a continuing problem with a Workers' Compensation statute (I can feel your eyes glaze over already) which is plain on its face but has been gutted by the appellate judges who looked at it a few years ago. None of the judges hearing cases now will listen to me about the plain language being ignored. That's the rub with overturning bad statutory translations; no one cares to listen to a continuing opposition. OK now to the meat.

We're all waiting for the DC Appeals Court to rule on a question of statutory interpretation of a clear line in the ACA (aka Obamacare). The decision is coming soon.

Here's the line in the ACA (subsection 1401):

"The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—

‘‘(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act..." (Emphasis in the original).

So the very necessary assistance (money "from" the government) in paying for health insurance mandated by the ACA only applies to people who have enrolled in "an Exchange established by the State under 1311..."

That last is pretty specific and plain on its face. And for the record the federal exchanges that are set up when a state elects not to set up an exchange are governed by 1321, a wholly different section.

Now lest you think this is just sloppy writing by the drafters of the bill, know that this exact formulation about state exchanges is repeated in multiple other sections in the act. Certainly the bill drafters assumed that every state would rush to set up an exchange (but they couldn't directly force the states to do so as that would be unconstitutional). They assumed wrong. More than 2/3rds of the states did not set up exchanges. Oops.

Although the federal government cannot order the states to do things, they can dangle carrots before the governors which entice the states to bend to the federal will. (A classic example is the federal desire to raise the drinking age back up to 21 and the carrot the feds used to make every state toe the line was highway funds-- 21 will get you several hundred million, 18 will get you nothing. All 50 states have a drinking age of 21). So the ACA drafters tried the carrot method, ineffectively, with the state exchanges. Build them and health insurance "premium assistance" will come, don't build an exchange and your citizens get no help.

So, someone is suing the government (former Secretary Sebelius to be exact) to get a statutory interpretation by a court that 1401 actually means what it says, that is, a ruling that premium assistance is not available in 30 some states, which only have exchanges established by the federal government under 1321. Such a ruling will make full implementation of this train wreck legislation very, very difficult. It may well implode rapidly and have to be repealed in full.

I wish! As with the Worker's Comp statute above, the DC Court judges will have to care about doing their job, will have to care about following the clear rules of statutory interpretation. They could well punt on doing their jobs and say close enough--they didn't mean to limit assistance to just the state exchanges. Courts do that lazy "close enough" fake interpretation (actual rewrite) nearly every work day here in America.

But the good news is that any ruling will be appealed by the losers and that will give the Supreme Court a second chance to drive a stake through the heart of this statist abomination/statutory scheme. With all the serious problems with the ACA and the lawless way it has been "rewritten" by the President, becoming clearer and worse, respectively, with the passage of time, Chief Justice Roberts may well choose this time to wield the stake.

Monday, July 07, 2014

Lefty Voter ID Myths Busted

Sunday, July 06, 2014

Constitutional Rights v. Government Mandates

This creaky old hosting platform won't let me download a good poster right now so I'll just put down the additional thoughts I had on the subject and we'll see if later I can add the photo.

This is just one of many examples.

The Second Amendment is plain on its face: [Because it's a good thing to have an organized, armed citizen Militia], the right of the People to keep and bear arms shall not be infringed. I modified (modernized) the dependent clause. The right to buy and use contraceptives exists only in the emanations of the penumbras streaming from the whole bill of rights and it was only discovered by the court in Griswold v. Connecticut in 1965. But both are rights guaranteed by the Constitution. OK. So does the fact that the right exists mean that the federal government has to pay for the guns or the contraceptives? No, of course not. What are you, stupid?

Does the government have the power to require that citizens have to pay for the guns or contraceptives to be used by others? Tougher question. If it's a tax (as we all know the ACA is), then I'd say maybe. So, the left should be careful about what "rights" it requires citizens to pay for others to have the item guaranteed. If they can make certain people pay for other people's contraceptives, we can surely make other people pay for my 2nd Amendment rights.